April 18, 2009

DRI Product Liability Conference: Summing Up

This has been a fun and busy three days. I learned a thing or two, met some great people, and put up a ton of posts. Page views were very high, so I guess somebody was reading. And I appreciate DRI President Marc Williams' kind words here.

My take-away points from this three day conference are these:

First, the rest of the world thinks that we Californians are certifiable lunatics, determined to crush whatever private enterprise remains and turn the state into a European-style chemical-free paradise. I heard this explicitly from out-of-state attorneys in attendance, and it was the implicit message from a number of non-California speakers.

And yet actual facts and law presented at the conference didn't really support this position: California Associate Justice Ming Chin's presentation on Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, and Saul Alinksy's brief discussion of the recent California decision in Taylor v. Elliott Turbomachinery (February 25, 2009) ____Cal.App.4th ___ (First Dist., ) No. A116816, both demonstrated moderate, business-friendly, reasonable approaches to product liability law. And before anybody despairs too much the business climate here, we should remember that this has been a hotbed of economic activity involving semiconductors, software and the internet, which in many ways have been the crown jewels of economic developement in the United States for quite a number of years. And despite one statement to the contrary during the conference, California has not turned its manufacturing rules over to the European Community.

As I've often stated in CalBizLIt.com and elsewhere, from a legal point of view, California isn't necessarily better or worse than the rest of the country, but it sure is different. A business's failure to understand and address those differences can put it on very treachorous ground.

Second, the tendency to predict the unpredictable -- likely litigation from new technologies -- is just irresistible. I know my crystal ball has been as clouded as anyone when it came to predicting the "next big thing" in litigation. The fact is, these are known unknowns, and it isn't likely that we will be able to predict what litigation, if any, is going to arise out of new green technologies. As in most manufacturing, the only things companies can do are be careful, follow the law, be conservative in their safety practices and buy insurance. Predictions about where this is all going are nothing more than guesses.

I think every trial lawyer (and probably everyone who speaks in public) should be required to attend a class on how to use Power Point. This is no longer a revolutionary technique: the idea is to use pictures, schematics, and very limited text to supplement the presentation. This is good to know in trial, and it's good to know when you speak at a seminar.

Finally, the most valuable thing anybody can do at a conference like this is encourage innovative ways for attacking litigation problems. We need to think like good plaintiff attorneys -- always be on the lookout for approaches nobody has tried before. Probably the best example of this was Dr. Gillis's presentation on DNA challenging. Everybody would benefit by seeing more simulated trial presentations from top, innovative practitioners, and there was none of that this time. On the other hand, the fewer war stories, the better; war stories always sound best after the days is over and after a few cocktails (although it's the tellers to whom they sound the best).

And of course, every seminar should have at least one presentation by Dean Chemerinsky, the rock star of law professors.